Updated 8:49 pm, Friday, November 9, 2012

Civil rights attorney John Burris is seen in his law office conference room on Monday, Sep. 10, 2012 in Oakland, Calif. News clippings about Burris and his cases line the walls of his offices.

Civil rights attorney John Burris is seen in his law office conference room on Monday, Sep. 10, 2012 in Oakland, Calif. News clippings about Burris and his cases line the walls of his offices.

Photo: Russell Yip, The Chronicle

Oakland: Why feds shouldn't control police

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Oakland officials, in a court filing late Thursday, insisted they can comply with police reforms outlined in a decade-old civil rights lawsuit settlement and said there's no justification for a judge to place the city's Police Department under the control of a federal receiver.

The city said that if a federal judge orders a receiver, as demanded by a pair of civil rights attorneys, the move would be unprecedented nationally, extreme and ineffective. In addition, they say, receivership would derail the city's delicately balanced finances.

City officials argued they have made substantial progress on reforms, citing dramatic reductions in police misconduct complaints and lawsuits from July 2007 through June 2011, fiscal periods that do not include Occupy Oakland clashes with police.

"Defendants are not advocating for the status quo," City Attorney Barbara Parker wrote in the filing to U.S. District Court Judge Thelton Henderson. "The law is clear, however, that the appointment of a receiver is an inappropriate and unsuitable remedy at this time."

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The court-ordered reforms were part of a civil settlement involving more than 100 plaintiffs who alleged that four Oakland officers had imposed vigilante justice in West Oakland. Three of the four officers were found not guilty in a criminal case, and the fourth fled the country. In a resulting settlement, Oakland had to implement a raft of reforms, which remain incomplete even after a deadline extension.

Financial concerns

Plaintiffs' attorneys in the case asked a federal court in October to place the department in federal receivership. Financially, the city says, receivership could be crippling. A receiver would have power to dictate expenditures of city funds, a factor city officials argued could downgrade the city's AA credit rating, spike operating costs, diminish the value of its bonds and require the cutting of city services.

The city's expansive response was made up of hundreds of pages of documents and declarations from a bevy of officials, including Mayor Jean Quan and Alameda County District Attorney Nancy O'Malley.

In addition to laying out a case for how the city would achieve the long-awaited reforms, the city's filing heavily criticized Robert Warshaw, the court-appointed monitor who measures the extent of the city's compliance with reforms.

Evaluations 'troubling'

Quan, City Administrator Deanna Santana and Police Chief Howard Jordan stated that Warshaw cut back on communications with the city and has often failed to give technical advice in a timely fashion, as promised. But the most dramatic statements came from O'Malley, the county's most powerful law enforcement official, who described Warshaw's evaluations of officer-involved shootings as "troubling."

O'Malley's 17-page criticism stated that Warshaw "ignores or discounts realities surrounding officer safety and the need to protect the citizens of Oakland from increasing violence by armed criminals."

"The tone and totality of the monitor's report on officer involved shootings raises strong concerns about the monitor's objectivity and ability to make unbiased criticism."

O'Malley criticized Warshaw over his officer-involved shooting guidelines, which she said states: "the justification for using deadly physical force must be based on the threat presented to the officer at the precise time force is used."

O'Malley, who investigates and reviews every officer-involved shooting in the county, says Warshaw's "precise time" standard contradicts California criminal law and subjects Oakland police to a different measure than any other police force.

"The monitor's suggestions that an officer has to wait until the firearm is leveled against him, practically the moment when the suspect fires on him - not only defeats the notion of officer safety, but literally imperils an officer's safety," O'Malley wrote.

Missing the point

The criticisms of Warshaw - a former police chief of Rochester, N.Y., and deputy drug czar under President Bill Clinton - come three months after Santana alleged that Warshaw used abusive and inappropriate language when talking to her, according to sources familiar with the confidential filing. The city asked Henderson to bar communications between Warshaw and the city, which Henderson denied.

John Burris, one of the plaintiffs' attorneys, said the city's filing missed the point.

"It's killing the messenger instead of understanding the message," he said. "The message is that they're out of compliance and the messenger has consistently said that."

Burris said O'Malley was "out of her league." He added that her office was consistently biased toward police.

"I can't think of one instance where an Oakland officer has been involved and the district attorney has found an improper shooting," Burris said. "The police have a bedfellow in the district attorney's office, and that's part of the problem."

Alternatives proposed

Oakland officials also argued that other avenues to receivership have not been explored.

As an alternative, they proposed creating two positions: a compliance director who would have quasi-judicial power to implement reforms; and a new assistant chief of constitutional policing, who would oversee a "change of OPD's culture."

Burris said such a solution could have been implemented at any time during the past decade. Now is too late, he said. The only solution is someone who has the power to hire and fire command staff - including the chief - if reforms are not met.

Burris said rank-and-file officers have been disciplined, but "no one is holding the command staff accountable."